AMW15 v Minister for Immigration and Border Protection

2. PRELIMINARY ISSUE: DEFERRING OF JUDGMENT PENDING THE HIGH COURT'S DECISION IN SZTAL 4 At the end of oral submissions, the Minister's representative alerted the Court to the grant of special leave to appeal by the High Court two days earlier from the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556 (SZTAL). In SZTAL, the issue was whether, given the likelihood that the applicant would be held in remand for a short period if returned to Sri Lanka and the poor conditions in Sri Lankan prisons, the Sri Lankan officials could be said to intend to inflict severe pain or suffering so as to amount to "significant harm" and thereby engage Australia's complementary protection obligations for the purposes of s 36(2A) of the Migration Act 1958 (Cth) (the Act). The Full Court held that actual, subjective intention to inflict significant harm was required and therefore proof of knowledge of the consequences of ordering that a person be detained without more did not suffice to attract complementary protection under s 36(2)(aa) of the Act. 5 The Minister appropriately indicated that he did not oppose the Court deferring the delivery of judgment pending the High Court's decision on that appeal, as requested by the applicant. I therefore reserved judgment but indicated that I would not deliver judgment before the High Court's decision in SZTAL was delivered. I also left open the possibility that, depending upon the outcome, it may become necessary to allow the appeal to be re-opened and to hear further submissions from the parties. The High Court delivered judgment in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 on 6 September 2017 upholding the Full Court's decision and dismissing the appeal. In those circumstances, there was no reason to defer judgment any longer in order to hear further submissions.

3.1 The applicant's claims and the decision of the Tribunal 6 The applicant is a citizen of Sri Lanka. He applied for a protection visa on 20 December 2012. That application was refused by the delegate on 14 February 2014. The applicant applied to the Tribunal for review of that decision. 7 Before the Tribunal, the applicant claimed protection on the ground that his former employer in Sri Lanka had threatened to kill him in relation to an unpaid debt incurred as a result of an incident in 2008 on his former employer's boat. He further claimed to fear harm on the basis of his activities for the United National Party (UNP) as a result of which he said that the opposition party wished to harm him. 8 The Tribunal had a number of concerns about the applicant's credibility and disbelieved the account of events on which his protection claims were based. First, the Tribunal had difficulty accepting that the applicant would have undertaken political activities for the UNP in circumstances where he claimed his life was at risk and he was trying to evade his former employer who had threatened to kill him. All of the applicant's evidence regarding his behaviour from November 2008 was found to be "unconvincing and not demonstrative of truthfulness" (at [16]). 9 Secondly, the Tribunal considered that the applicant had given inconsistent evidence about events from June 2011. Before the Tribunal, the applicant claimed that he was attacked in 2011 by a group of men while waiting for a bus, including by a member of parliament from the opposition party, as a result of which he was hospitalised for five months. However, the Tribunal considered that this claim was inconsistent with the evidence given in his earlier written statement, and that he had not provided a satisfactory explanation for the discrepancies in his account. The Tribunal further disbelieved the applicant's claims that he undertook activities for the UNP and held that there was no credible evidence before it in relation to the applicant's political opinion. 10 Thirdly, the Tribunal concluded on the issue of the applicant's credibility that he was not a witness of truth and that the account of events on which his protection claims were made was false. Further, it disbelieved his claims that he undertook activities for the UNP and found that there was no credible evidence about the applicant's political opinion (at [27]-[28]). 11 In the fourth place, in light of the country information and inferences drawn from it, the risk of the applicant suffering serious harm in Sri Lanka because he is Sinhalese, from a particular region, left the country illegally, and will return there as a failed asylum seeker, was considered by the Tribunal to be remote. 12 As a result, the Tribunal found the applicant did not hold a well-founded fear of persecution for a Refugee Convention reason so as to satisfy the criterion for a protection visa under s 36(2)(a) of the Act. Nor did Tribunal accept, in light of the country information and its earlier findings as to the applicant's credibility, that he met the alternative criterion in s 36(2)(aa) of the Act for complementary protection, namely that he may suffer a real risk of significant harm (as defined in s 36(2A)) if returned to Sri Lanka.

3.2 The Federal Circuit Court decision 13 On 20 April 2015, the applicant filed an application for judicial review in the Court below. The grounds of review were that: (1) The Refugee Review Tribunal did not accord me procedural fairness. (2) The Refugee Review Tribunal applied the wrong test. 14 On 15 April 2016, the applicant's application for judicial review was listed for a directions hearing at 2.15pm. The applicant did not attend and his application for judicial review was dismissed for non-appearance. The applicant applied on 17 May 2016 for the reinstatement of the substantive proceeding. The applicant explained in the Court below that the reason why he had not appeared was because he went to the wrong courtroom and by the time he had realised his error, the case had finished. 15 The primary judge was "not entirely satisfied with the adequacy of the applicant's explanation for his failure to attend" (at [17]) but considered in any event that the "more important question" was whether there were reasonable prospects of success of the substantive application (at [4]). The primary judge was "unable to detect any jurisdictional error in the Tribunal's reasons or decision-making process" and therefore was unable to accept that the applicant had any reasonable prospect of success in the substantive application, and dismissed the application to reinstate the proceeding (at [16]-[17]). In this regard, her Honour noted that the grounds of review were devoid of any particulars, and that she could not detect any manner in which the applicant had been denied procedural fairness or any way in which the Tribunal may have applied the wrong legal test.

4.1 Relevant Principles 16 Leave to appeal the decision of the Court below is required because that decision (an application for reinstatement) is interlocutory in nature: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Further, under r 35.13 of the Federal Court Rules 2011 (Cth) (FCR), the applicant was required to file any application for leave to appeal from the decision below within 14 days of the date on which judgment was pronounced below. As judgment was given on 24 May 2016, any such application was therefore required to be filed by 7 June 2016. However, the application was filed only on 20 June 2016, i.e., 13 days out of time. Accordingly, the applicant first requires an extension of time under r 35.14, FCR. 17 The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant's explanation for the delay, any prejudice to the respondent, and the merits of the proposed appeal: SZSPR v Minister for Immigration & Border Protection [2013] FCA 1210; (2013) 139 ALD 109 at 113 [16] (Farrell J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J). Relevant considerations in deciding whether to grant leave to appeal include whether an appeal would have any reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused, assuming the decision subject to appeal is wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 18 As to the merits of the proposed appeal, as Mortimer J recently held in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63] (upheld on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110), the correct approach to determining the merits of the proposed grounds of appeal in the context of an application to extend time (in that case, under s 477(2) of the Act) is whether the grounds of appeal are "arguable", "reasonably arguable", "sufficiently arguable" or have "reasonable prospects of success" (see also SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [48] (Wigney J); SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 at [46]-[48] (Foster J)). It should not be transformed into a de facto full hearing, but rather the "certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless" (at [62]).

4.2 Should an extension of time within which to seek leave to appeal be granted?

4.2.1 Delay 19 As the Minister acknowledged, the length of the delay was not substantial. The Minister also accepted that he would not suffer prejudice by the grant of an extension of time. 20 In relation to the explanation for the delay, the applicant filed an affidavit on 20 June 2016 explaining that he "was unable to sustain [sic] representation or assistance to make an application (and also due to my lack of knowledge)" to the Federal Court and therefore was unable to present his application on time. In an annexure to that affidavit, the applicant noted that he was illiterate and was unable to speak, read or write in English, had no knowledge of court or legal procedures, and was not aware that there was a time limit to present the application for leave. He also noted that he did not have anyone to assist in reading letters close to his home, and he was unable to afford legal advice due to his financial situation. 21 The Minister submitted that this explanation was inadequate on the basis that it is an applicant's responsibility to ascertain her or his review rights, including any applicable time limits, and the fact an applicant is unrepresented does not justify an extension of time being granted. On the other hand, while ex tempore (i.e. contemporaneous oral) reasons were given, written reasons were not published by the Court below until after the expiry of the time within which any application for leave to appeal should be instituted. This is an undesirable state of affairs and is readily avoidable. As the Full Court recently held in Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [26] (Perram, Farrell and Perry JJ, "FCR r 36.03(b) expressly envisages that the court appealed from may make orders deferring the commencement of the period within which an appeal may be instituted: see CTV15 v Minister for Immigration and Border Protection [2017] FCA 976 at [12]. It is also open, for example, to a Court to defer the date on which the final order as to costs is made until written reasons are published thereby achieving the same result." On balance, therefore, if the grounds have any reasonable prospects of success, I would grant the extension of time and leave to appeal in all of the circumstances.

4.2.2 Would an appeal have any reasonable prospects of success? 22 The applicant has identified six grounds in his application for an extension of time and leave to appeal. A draft notice of appeal was attached to the application which included a further six proposed grounds of appeal which were broadly similar to the five grounds in the application. The grounds can be summarised as follows. (1) The primary judge failed to identify the merits of the case to allow the reinstatement of the proceedings. (2) The primary judge erred in "not finding that the interest of the Appellant is affected by the decision [of the Tribunal]", the particulars of which indicate the applicant wishes to challenge the Tribunal's consideration of the criteria in s 36(2)(a) and s 36(2)(aa) in relation to the applicant. (3) The primary judge erred in identifying the wrong issue, asking the wrong questions, relied on irrelevant material or ignored relevant material, the particulars of which allege the Tribunal failed to consider an express claim of the applicant that he was at risk of persecution because of his membership of a particular social group and also failed to consider country information when determining the claim under s 36(2)(aa). (4) The applicant was denied natural justice because the Tribunal questioned the applicant in a manner implying he was not a credible witness and gave undue weight to the statement made at the time of the applicant's arrival. (5) The Tribunal failed to review and consider the application for protection in accordance with the Act, (6) The Tribunal ignored or failed to consider s 424A of the Act. 23 I do not consider that any of these proposed grounds of appeal would have any reasonable prospect of succeeding, if leave were granted. 24 First, ground 1 does not identify any error. The primary judge had a discretion as to whether or not to reinstate the proceeding and as result, whether the application for judicial review should be determined on its merits. The real question is whether the primary judge acted on a wrong principle, took into account irrelevant matters, or otherwise erred in a manner justifying this Court interfering in the exercise of discretion by the Court below: House v The King (1936) 55 CLR 499 at 505. Nor does ground 2 identify any error. 25 Secondly, grounds (3), (5) and (6) in principle identify grounds of judicial review which, if established, may constitute jurisdictional error which will invalidate the decision of the Tribunal. However, all of the grounds are expressed at a high degree of generality and do not identify any specific error made by the Court below or in the Tribunal's decision which it is said that the Court below erred in failing to find. In this regard, the Minister's representative pointed to the observations by White J in ARO15 v Minister for Immigration and Border Protection [2016] FCA 1154 at [11] (and ATH15 v Minister for Immigration and Border Protection [2016] FCA 1155 at [11] (White J)) in which his Honour was critical of "template" grounds of appeal, that is, grounds which contain a "shopping list" of grounds of review which make no attempt to identify error in the decision of the primary judge or Tribunal. In any event, while I appreciate the considerable difficulties which the applicant faced as an unrepresented litigant who does not speak English, the applicant did not elaborate upon any of these grounds in written or oral submissions so as to identify any possible error. 26 Thirdly, as to ground 4, nothing indicates any basis on which to consider that there has been a breach of the requirements of procedural fairness. Nor does the fact that adverse credibility findings were made alone suggest any actual or perceived bias, insofar as the proposed grounds of appeal would raise any such allegation. Furthermore, the Tribunal's proceedings are inquisitorial and the parties are not legally represented. As a result, the Tribunal was required to put adverse information to the applicant in order to give him an opportunity to comment upon it as a matter of procedural fairness. The fact that such a line of questioning in that context may imply that the applicant is not a credible witness does not necessarily give rise to an apprehension of bias: see Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at [30] (the Court). It is also the task of the Tribunal to determine the weight to be attributed to particular evidence: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41 (Mason J). Nothing has been identified which suggests that the weight given to the applicant's written statement which accompanied his application for the visa was irrational, illogical, or not based upon probative evidence so as to constitute jurisdictional error. 27 Thirdly, I am unable otherwise to detect jurisdictional error in the Tribunal's reasons. 28 Fourthly, at the hearing the applicant made submissions in which he said that he wanted to lead current evidence to demonstrate why he could not be returned to Sri Lanka and that he disagreed with the factual findings by the Tribunal that it was not satisfied that he had a well-founded fear of persecution or a real risk of significant harm. The affidavit filed by the applicant also seeks to re-agitate the merits of the applicant's application. 29 However, the Minister's representative submitted, neither this Court nor the Court below has jurisdiction to grant the applicant a protection visa or to decide whether he satisfies the criteria for the grant of a visa. As such, neither court can consider the factual merits of the Tribunal's decision to refuse to grant a protection visa to the applicant. The jurisdiction of the Court below is limited to considering only whether the Tribunal's decision to refuse to grant the applicant a visa was lawfully made under the Act, that is, whether the Tribunal's decision is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). This means that the Court below can consider, for example, whether the Tribunal's decision is procedurally fair, legally reasonable, or has taken into account relevant (mandatory) considerations. In turn, on an appeal under s 24 of the Federal Court of Australia Act 1976 (Cth), this Court is required to consider whether the Federal Circuit Court fell into error in dismissing the application for judicial review. 30 Finally, the Minister's representative pointed to the fact that the Court below had doubts about the applicant's reasons for failing to attend the directions hearing in the Court below which led to the summary dismissal of his application. In this regard, I note that, the Court below did not reject the applicant's reasons on the application to reinstate the proceedings, even though the primary judge said that she was not entirely satisfied with his explanation. Rather, the primary judge decided against the application to reinstate the proceeding on the ground that she did not consider that the application for judicial review had any real prospects of success. Furthermore, there is nothing inherently implausible about the applicant's reason, namely, that he was directed to the wrong courtroom by a court officer and that, by the time that he found the correct courtroom, the case was completed and the judge had left the court. In those circumstances, if it were intended to reject his explanation, it would have been necessary as a matter of procedural fairness for him first to be cross-examined.

5. CONCLUSION 31 It follows for these reasons that the application for an extension of time within which to seek leave to appeal from the decision of the Court below is dismissed. As the Minister has been successful in defending the application, an order should also be made that the applicant is to pay the Minister's costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.